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Monday, August 9, 2010

SAN FRANCISCO—Lawyers for gay couples, California Gov. Schwarzenegger and Attorney General Jerry Brown filed legal motions Friday telling a federal judge that allowing same-sex marriages to resume immediately in the state was the right thing to do.

The motions came two days after U.S. District Court Judge Vaughn Walker struck down California's voter-approved gay marriage ban as unconstitutional.

In his 136-page decision, Walker said gay marriages should begin immediately. But later Wednesday, he agreed to suspend weddings until he could consider the legal arguments he ordered to be filed by Friday.

Opponents of same-sex marriage said they want Proposition 8 to stay in effect until their appeal of Walker's ruling is decided by higher courts.

They argued in court papers filed earlier this week that resuming gay marriage now would cause legal chaos if the U.S. 9th Circuit Court of Appeals or U.S. Supreme Court eventually reverse Walker's ruling.

The 9th Circuit received their appeal of Walker's decision on Wednesday, hours after the judge ruled that Proposition 8 violates the civil rights of gay Californians.

On Friday, Schwarzenegger and Brown were the first to urge an immediate resumption of gay marriage, which was legal in the state for more than four months before voters amended the California Constitution to outlaw it in November 2008.

The legal team of David Boies and Ted Olson, who filed the lawsuit on behalf of two gay couples that led to Walker's ruling, also submitted a motion in conjunction with the city of San Francisco, another plaintiff.

They all argued that since the judge declared Proposition 8 to be illegal, gay couples should be able to marry now.

Boies and Olson said gay couples "will continue to suffer irreparable harm if Proposition 8's irrational deprivation of their constitutional rights is prolonged."

It was unclear when the judge would decide whether to order the state to issue marriage licenses to same-sex couples or to grant a stay that would keep the gay marriage ban in effect during the appeals process.

Even if he does clear the way for same-sex couples to wed, lawyers for sponsors of Proposition 8 plan to ask the federal appeals court for an emergency order to prevent that from happening.

The governor and attorney general almost always defend state laws when they are challenged. But in this case, both refused to participate in fighting the lawsuit aimed at overturning the ban.

Brown is the Democratic nominee for governor on the November ballot and he previously called the ban unconstitutional.

Schwarzenegger has been more circumspect on his Proposition 8 position and his motion to immediately resume gay marriage was his boldest pronouncement on the issue.

"The administration believes the public interest is best served by permitting the court's judgment to go into effect, thereby restoring the right of same-sex couples to marry in California," lawyers for Schwarzenegger said in the legal filing. "Doing so is consistent with California's long history of treating all people and their relationships with equal dignity and respect."

Brown also said it's time for gays to begin marrying again.

"While there is still the potential for limited administrative burdens should future marriages of same-sex couples be later declared invalid, these potential burdens are outweighed by this court's conclusion, based on the overwhelming evidence, that Proposition 8 is unconstitutional," Brown said in his legal filing.

The outcome in the appeals court could force the U.S. Supreme Court to confront the question of whether gays have a constitutional right to wed.

Santa Cruz County Clerk Gail Pellerin, president of the California Association of Clerk and Elected Officials, said county agencies that issue marriage licenses will be ready to serve same-sex couples whenever they get the green light.

During the window in 2008 when same-sex marriage was legal in California, the state changed its marriage license applications to be gender-neutral so applicants only had to check boxes indicating "bride" or "groom" if they chose to.

At the same time, Pellerin said local officials do not want to be in the position of being asked to issue licenses if Walker enforces his decision only to have an appeals court later impose a stay. It would be better for all involved to have the process be unambiguous, she said.

"We don't want to issue a couple who are in love and want to get married a $75 license and then turn around a minute or a week later and say that license is no longer valid," she said. "We don't want anyone to be in the position of being led down that path."

Walker presided over a 13-day trial earlier this year that was the first in federal court to examine if states can prohibit gays from getting married without violating the constitutional guarantee of equality.

Supporters argued the ban was necessary to safeguard the traditional understanding of marriage and to encourage responsible childbearing.

Opponents said that tradition or fears of harm to heterosexual unions were legally insufficient grounds to discriminate against gay couples.

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